Extaza of 34th Street v. City Stores Co.

Appellate Division of the Supreme Court of New York

Extaza of 34th Street v. City Stores Co.

97 A.D.2d 391, 468 N.Y.S.2d 10, 1983 N.Y. App. Div. LEXIS 19968

Appellate Division of the Supreme Court of the State of New York·Decided October 27, 1983·Published

Opinions

— Order, Supreme Court, New York County (Alfred M. Ascione, J.), entered April 4, 1983, denying the defendant-appellant’s motion for summary judgment dismissing the complaint, affirmed, with costs and disbursements. We find the lease clause described in the dissent to be void under section 5-321 of the General Obligations Law. A substantially similar clause was struck down in Graphic Arts Supply v Raynor (91 AD2d 827) for the same lack of mutuality that we find here. The language there (p 828) is likewise applicable here: “Nothing in the agreement before us suggests any bilateral participation. If the instant agreement were held valid, landlords could circumvent the intent of the legislation merely by inserting in the lease a requirement that the tenant obtain insurance”. The opinion in Graphic Arts expressly distinguished the three cases relied upon by our dissenting brother, a distinction to which we subscribe. Concur — Asch, J. P., Bloom, Lynch and Alexander, JJ.

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— Order, Supreme Court, New York County (Alfred M. Ascione, J.), entered April 4, 1983, denying the defendant-appellant’s motion for summary judgment dismissing the complaint, affirmed, with costs and disbursements. We find the lease clause described in the dissent to be void under section 5-321 of the General Obligations Law. A substantially similar clause was struck down in Graphic Arts Supply v Raynor (91 AD2d 827) for the same lack of mutuality that we find here. The language there (p 828) is likewise applicable here: “Nothing in the agreement before us suggests any bilateral participation. If the instant agreement were held valid, landlords could circumvent the intent of the legislation merely by inserting in the lease a requirement that the tenant obtain insurance”. The opinion in Graphic Arts expressly distinguished the three cases relied upon by our dissenting brother, a distinction to which we subscribe. Concur — Asch, J. P., Bloom, Lynch and Alexander, JJ.

Extaza of 34th Street v. City Stores Co., 97 A.D.2d 391, 468 N.Y.S.2d 10, 1983 N.Y. App. Div. LEXIS 19968 (N.Y. Ct. App. 1983).

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Opinions

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